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THE CONCLUSION

Research of various aspects of the validity of the arbitration agreement has allowed the author of dissertation to come to following conclusions. The arbitration and the arbitration agreement, having indissoluble communication, possess the general legal nature as the arbitration agreement represents itself as the basic precondition for voluntary consideration of the future or already arisen dispute in the international arbitration court, would be illogical to consider these two institutes separately. The conclusion provides with the arbitration agreement parties protection of the private rights most effectively in comparison with dispute consideration in court, the arbitration also frequently gives to the parties of more advantages of procedural character. In the doctrine for today there is standard point of view concerning the legal nature as no arbitration agreement, and arbitration. On the basis of the review of classically allocated contractual and remedial theories the conclusion that they are not made has been drawn and the theory sui generis most full reflects specificity of the legal nature of the arbitration agreement and arbitration.

In each concrete case it is important to investigate essence of position about the resolution of dispute and to find out, whether it means by itself the arbitration agreement in language of the international arbitration conventions and national laws about arbitration. In spite of the fact that exists though also small, but probability of that the parties name the arbitration agreement, for example, the agreement on the independent conclusion of the expert and this name will not change essence of such conclusion and the more so will not approach it to arbitration, only in an unusual case the use in the basic agreement of the term "arbitration" will be interpreted somehow differently, than "arbitration agreement".

During dissertational research following stages of trial when before arbitrators or the state court there is a question on the arbitration agreement validity have been designated. First, such problem is put initially before arbitrators for definition of their own competence. Secondly, in a case when one of the parties files action on the substance of dispute in the state court, the court should, if any of the parties asks about it not later than representation of the first statement on the substance of dispute, to cease manufacture and to direct the parties to arbitration if will not find, that this agreement is void, has become invalid or cannot be executed. In this connection it is not necessary to exaggerate the fact of possibility of consideration by the state court of a question on the arbitration agreement validity at claim acceptance to consideration: it the court only recognises or excludes the own competence, but in any way the arbitration court competence.

Thirdly, there is a possibility of contest of the accepted arbitral award in the state court [555], thus one of preconditions of cancellation of such arbitral award invalidity of the arbitration agreement by the right chosen by the parties or if such choice is not present - by the right of the country where the decision has been taken out [556 [557], in particular, is. Thus, the arbitral award which has been taken out owing to presence of such "void" arbitration agreement, will not have any legal effects for the parties. Besides, at a stage of a recognition and arbitral award execution the question on invalidity of the arbitration agreement which is provided in article of V New York convention the basis for refusal in arbitral award reduction in execution also can be brought up.

It is necessary to pay attention also to the closed list of the bases for arbitral award cancellation, and also refusal in execution of such decision, that once again proves narrowing in world practice of possibility of intervention of the state court in arbitration court activity.

During dissertational research circumstances and criteria which influence the arbitration agreement validity have been established., However, it has been noticed, that neither in the New York convention, nor in the Typical law, in national arbitration laws conditions to which the arbitration agreement to be valid should answer are not listed. On the basis of it aspects of the validity are deduced from texts of the above-named regulatory legal acts by a method źfrom the return╗ when position appears "is void". Considering the unique legal nature of the arbitration agreement sui generis which contains contractual elements on its genesis and remedial elements on jurisdiktsionnomu to character, for definition of a question of the validity of such agreement obosnovanno the universal civil-law toolkit (will, the legal capacity, capacity) is applicable.

The author reveals a difference of concepts of "invalidity", źforce loss╗ and "impracticability": the arbitration agreement which from the very beginning had no validity is void; when there are ineradicable defects of the form of the agreement; the party in the agreement does not possess the legal capacity, has no powers for the arbitration agreement conclusion and also when there are flaws in the will. Loss of force of the arbitration agreement occurs, when that there was the will of the parties directed on the termination, cancellation of the agreement or is available the decision on the same dispute between the same participants owing to a principle res judicata or ne bis in idem. Whereas the arbitration agreement which cannot be executed, it is necessary to consider such agreement which has not absolutely clear formulation that does its practical realisation problematic. It is established also, that there is a difference between concept the "void" arbitration agreement and concept the entered into agreement, otherwise, the agreement which basically does not exist in a legal field. It is a question of not concluded arbitration agreement, when the parties have not been reach the agreement. The given conclusion proves impossibility of application to not concluded arbitration agreement of a principle of the validity "validnosti" by which the presumption of its validity would be established.

The analysis pravoprimenitelnoj experts has allowed to reveal two important principles: a validity principle (validnosti), or favour validitatis, and a principle nediskriminatsii. The given principles or are already applied by foreign vessels and arbitration, or should be applied in a context of the decision of a question on the arbitration agreement validity, in particular, such practice should be priority in frameworks both internal, and the international arbitration in Russia.

The short stories introduced in Typical law JUNSITRAL and Recommendations concerning interpretation of item II (2) and item VII (1) of the New York convention are inherently aimed at expansion of borders of the validity of the arbitration agreement, fix the proarbitration approach to interpretation of arbitration agreements. Thereby the severity of positions concerning the form of the arbitration agreement of the Convention acts in film, and "analogues" of the written form do not carry exhaustive character.

The arbitration agreement is the extremely rare and in unusual cases can be nullified on the basis of flaws in the will owing to a principle of autonomy and high requirements to proving of the fact of presence of any flaw in the will directed on the arbitration agreement. Thus, the deceit and intended deception can be the invalidity basis, in a case if, for example, the party has been fraudulently inclined to the arbitration agreement conclusion. And, on the contrary, party errors in essentia in the goods which it gets, do not influence the arbitration agreement validity, so, and on possibility of consideration of dispute in essence in arbitration. The fact of violence, pressure upon the party also should be aimed exclusively at the arbitration agreement, that the party not interested in arbitration manages to prove extremely seldom. Thus, the bases to challenge the arbitration agreement validity should mention the arbitration agreement, and not just positions of the basic contract. The given condition confirms that fact, that true representation of a presumption of autonomy of the arbitration agreement demands definition and an estimation of each concrete case separately: whether concrete cases of flaws in the will influence the validity of separately taken arbitration agreement.

The judiciary practice analysis also has allowed to come to a following conclusion: such legal proceedings (or inactivity) as, for example, giving of the claim on the substance of dispute in the state court, delay in appointment of the arbitrator, non-payment of in due time advance payment to arbitrators, should be considered as disclaimer or cancellation of the agreement of the parties only in unusual cases. Default by the party during arbitration appropriate amount of remedial duties is regarded by arbitration tribunal as infringement of duties of the party on participation in arbitration proceeding, non-observance of principles of good will within the limits of execution of the remedial competences should not represent refusal of the agreement on arbitration. Moreover, initiation by the party of legal proceedings for acceptance in favour of arbitration proceeding obespechitelnyh measures is not disclaimer on arbitration proceeding according to the arbitration agreement. The tendency to the careful and weighed estimation of all circumstances on purpose is established "not to hold down" the party in the right to arbitration. In such cases, leaning against a rationality principle, pravoprimenitelju it is necessary prezjumirovat, that refusal of arbitration proceeding was not.

Among requisitions to the arbitration agreement, the international conventions fixed in texts, national laws about arbitration,

The typical law, the requirement about źthe written form╗ is universal. A rationality of other requisitions as requirements about a font size by which the arbitration clause should be printed, in our opinion, is rather disputable, especially considering the convincing tendency of a withdrawal existing in last decade from special and unduly burdensome requirements to the arbitration agreement form. To the requirement of the written form there is a logical explanation, first, it is a guarantee of that the parties realise derogatsionnyj effect of the arbitration agreement and exclude trial of this dispute in the state court, secondly, it is protection against the introduction into rash relations which are interfaced to disclaimer on access to usual vessels. However the author pays attention on recognised, in particular the Constitutional Court of the Russian Federation ravnovelikost of dispute consideration in state and the arbitration court as alternative form of protection

581

The civil rights.

For today pravoprimenitelju it is necessary to interpret positions of the New York convention and national arbitration laws as "proarbitration", not creating obstacles to a validity recognition as behind oral arrangements on arbitration (with some reservations), and agreements in the improper written form.

Within the limits of scale reform of the arbitration legislation in the Russian Federation the Russian legislator were including loans from the Typical law of 2006, however not in full, for example, positions about the oral form of the arbitration agreement are made, namely the variant of II item 7 of the Typical law was not implementirovan, at the same time own unique progressive short stories - item 9 of item 7 of the Law about MKA and item 8 of item 7 of the Federal act źAbout arbitration╗ 2015, fixing have been added

581 Decision of the Constitutional Court of the Russian Federation from 26.05.2011 N 10-P, "On business about check of constitutionality of positions of point 1 of article 11 of the Civil code of the Russian Federation, point 2 of article 1 of the Federal act" About the arbitration courts in the Russian Federation ", Federal act articles 28" About the state registration of the rights to real estate and transactions with it ", point 1 of article 33 and Federal act article 51" About the mortgage (real estate pledge) "in connection with inquiry of the Supreme Arbitration Court of the Russian Federation"//źMeeting of the legislation of the Russian Federation╗, 06.06.2011, N 23, item 3356.

Rule according to which at arbitration agreement interpretation any doubts should be interpreted in favour of its validity and feasibility and which will allow to realise in domestic pravoprimenitelnoj to practice the proarbitration approach.

The conclusion that at the resolution of disputes about observance of the form of the arbitration agreement to vessels is recommended to pay attention not to the certificate of the fact of the conclusion and arbitration agreement presence, and on possibility to establish has been drawn, by means of what form of fixing is admissible to confirm the maintenance of such arbitration agreement. Besides with a view of following of the world tendency of the proarbitration approach there would be inefficient and even harmful a fastening measure in remedial legislations, in particular in Russian, possibilities to hand in in the state court the statement directed directly on contest of the validity of the arbitration agreement.

The question of the validity of the arbitration agreement as a research theme is rather perspective for consideration and further as still few states have apprehended new edition of Typical law JUNSITRAL and only pravoprimenitelnaja practice can prove or confute efficiency of those or other short stories in the arbitration legislation.

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A source: Kolomiets Anna Ivanovna. the VALIDITY of the ARBITRATION AGREEMENT BY THE RIGHT OF Russia And FOREIGN COUNTRIES. The dissertation on competition of a scientific degree of the master of laws. Moscow -. 2018

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